On the same day the Occupational Safety and Health Administration issued the long-anticipated Emergency Temporary Standard (ETS) applicable to healthcare employers, the agency also issued updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace applicable to all other workplace settings. Generally, OSHA aimed its June 10 guidance at “unvaccinated or otherwise at-risk” employees to help employers identify COVID-19 exposure risks and to prevent exposure and infection. And while this guidance is not legally binding like the healthcare ETS, you should still carefully review its contents and use the guidance to determine any appropriate control measures to implement. Here are the 10 key takeaways to ensure your workplace takes appropriate measures.
The Basics: OSHA Gives Wide Latitude to Most Employers
From an overall perspective, OSHA provides that, except for workplace settings covered by the agency’s healthcare ETS and the remaining mask requirements for public transportation settings, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. However, employers should still protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces. Indeed, OSHA’s guidance makes clear that employers not covered by the healthcare ETS no longer need to implement measures to protect fully vaccinated workers, unless those workers are “otherwise at risk” or unless required by federal, state, local, tribal, or territorial laws, rules, and regulations.
For definitional purposes, the agency noted that “unvaccinated workers” are those who do not meet the CDC’s definition of “fully vaccinated” (two weeks past the final shot in a COVID-19 vaccine series). OSHA’s guidance considers “otherwise at-risk” workers to be those who may not be capable of a full immune response to vaccination because of a prior transplant or prolonged use of corticosteroids or other immune-weakening medications.
The 10 Recommended Measures for Covered Employers Under OSHA’s New Guidance
OSHA’s guidance states that employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:
What are Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers?
OSHA’s guidance also specifically identifies additional measures you should take to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in higher-risk workplaces. Higher-risk workplaces include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing, given the potential for workers to work indoors, in close contact for extended durations (e.g., for eight to 12 hours per shift). In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers, OSHA recommends:
Most businesses should already have COVID-19 measures in place to comply with OSHA’s latest guidance. However, if you have relaxed measures or measures don’t adequately protect unvaccinated or otherwise at-risk workers employers, you should act immediately to ensure compliance. Additionally, as a reminder, nothing in the guidance limits state or local government mandates or guidance that go beyond OSHA’s suggestions or recommendations.